You are on page 1of 4

Clerk of the Superior Court

*** Electronically Filed ***

12/16/2022 8:00 AM

CV 2022-095403 12/15/2022









I. Background

Following her verified statement of election contest, Plaintiff Kari Lake filed a verified
petition to inspect ballots pursuant to A.R.S. § 16-677(B). She then filed an amended verified
petition expanding the scope of her inspection request. Defendant Maricopa County filed responses
to both the original and amended verified petitions, to which Plaintiff filed a reply. Defendant
Secretary of State Katie Hobbs filed a separate objection to the verified amended petition but joins
the County’s arguments. Katie Hobbs also filed a response in her capacity as election contestee.

The court has considered the original and verified petitions, Maricopa County’s responses,
the Secretary’s objection and her response, and Plaintiff’s reply.

Docket Code 019 Form V000A Page 1


CV 2022-095403 12/15/2022

II. Sufficiency of Petition

Plaintiff requests the following inspection items pursuant to A.R.S. § 16-677(B):

1) Fifty randomly selected “ballot-on-demand” (BOD) printed ballots cast on Election

Day from six vote centers in Maricopa County chosen by her representative,

2) Fifty randomly selected early ballots cast in the 2022 general election from six separate
Maricopa County batches chosen by her representative,

3) Fifty randomly selected early ballot envelopes for early ballots cast in Maricopa County
in the 2022 general election, and

4) Fifty randomly selected BOD printed ballots that were marked spoiled on Election Day
from six separate Maricopa County vote centers chosen by her representative.

The Defendants correctly emphasize that “election contests are purely statutory,” see
Grounds v. Lawe, 67 Ariz. 176, 186 (1948), and so are dependent on statutory provisions for their
conduct, see Fish v. Redeker, 2 Ariz. App. 602, 605 (1966). Arizona’s election contest statutes
provide that, “[a]fter the statement of contest has been filed and the action is at issue, either party
may have the ballots inspected before preparing for trial.” A.R.S. § 16-677(A). To do so, the
applying party must “file with the clerk of the court a verified petition stating that he cannot
properly prepare for trial without an inspection of the ballots. A.R.S. § 16-677(B).

The Defendants do not challenge that Plaintiff “stat[ed]” in her petition “that [s]he cannot
properly prepare for trial without an inspection of the ballots,” see A.R.S. § 16-677(B), but they
argue she still fails to meet that statutory requirement because ballot inspection cannot help her
prepare to prosecute the specific allegations of her election contest, and the legislature intended
that ballot inspection should only be allowed “when such inspection really is necessary” to prepare
for trial. They support this assertion of the legislature’s intent by noting that Arizona law generally
prohibits public inspection of ballots and that statutory grounds to contest elections that involve
ballots include challenges to information included on ballots. See A.R.S. § 16-672(4) (on account
of illegal votes) and (5) (erroneous count of votes).

The Defendants correctly argue that giving effect to legislative intent is a basic tenet of
statutory construction, but Arizona courts do so first by looking to the statutory language itself.
Baker v. University Physicians Healthcare, 231 Ariz. 379, 383 ¶ 8 (2013). When the language is
“clear and unambiguous[] and thus subject to only one reasonable meaning,” courts apply the
language without using other means of statutory construction. Id. Section 16-677(B) requires only
a statement that the petitioner cannot properly prepare for trial without an inspection of ballots.
Docket Code 019 Form V000A Page 2

CV 2022-095403 12/15/2022

The legislature may have intended the higher standard argued by the defendants, but this court
cannot read into Section 16-677(B) anything “not within the manifest intention of the legislature
as gathered from the statute itself.” See City of Phoenix v. Donofrio, 99 Ariz. 130, 133 (1965).
Because Plaintiff represents that she requires this inspection to prepare for trial, she meets this

Plaintiff’s specific inspection requests (1), (2), and (4) are for a limited number of ballots
unlikely to unduly burden Maricopa County or require much time before trial to complete. They
are requests for ballot inspections as the statute requires. However, request (3), for inspection of
early ballot envelopes, moves beyond the statutory scope of permitted inspection. Early-ballot
return envelopes are not themselves ballots, even if they arrive as a “package” as Plaintiff argues.
The defendants are correct that ballots—unlike the return envelopes—do not contain signatures.
Indeed, they cannot, as the Arizona Constitution requires that “secrecy in voting shall be
preserved,” by any voting method prescribed by the legislature. See Ariz. Const. Art. 7 § 1. Thus,
inspection request (3) is denied because it is not authorized by the inspection statute and such an
inspection would violate the Arizona Constitution. Plaintiff is entitled to her other three requests.

III. Further Requirements and Scope of Relief

The requirements of Section 16-677(B) do not end with Plaintiff’s representation of

necessity. The party applying for inspection must also “file with the petition a bond, approved by
the clerk, with two sureties, in the principal amount of three hundred dollars, conditioned that he
will pay the costs and expenses of the inspection if he fails to maintain the contest.” At this point,
the court does not know if Plaintiff has complied with this statutory requirement.

If Plaintiff complies, the court must “appoint three persons, one selected by each of the
parties and one by the court, by whom the inspection shall be made.” A.R.S. § 16-677(B). The
petitioner must be in full compliance with the bonding and inspector selection requirements before
proceeding with inspection.

In her objection, the Secretary argued separately that the petition for inspection should be
denied “because discovery should not be granted in connection with an invalid election contest.”
The Court agrees with Secretary Hobbs that an election contest—as any other kind of legal
action—must meet threshold pleading requirements to proceed.” However, the matter at issue here
is Plaintiff’s petition to inspect, not the underlying election contest. The Defendants have filed
motions to dismiss that are currently being litigated. The court will rule on the sufficiency of
Plaintiff’s verified statement of election contest after due consideration of all parties’ briefing on
the matter and expresses no view of the weight or sufficiency of the evidence to be provided
through Lake’s proposed statistical analysis.

Docket Code 019 Form V000A Page 3


CV 2022-095403 12/15/2022

This court must also be sensitive to the strict statutory deadlines for the trial of an election
contest. See A.R.S. § 16-676(A)-(B). Recognizing that Defendants are confident in their position,
the court nonetheless cannot put off all pre-trial discovery on the expectation that the contest will
be dismissed. The court is also concerned with preventing any disruption or delay to any ongoing
recount pursuant to A.R.S. § 16-661 et seq. See State ex rel. Montgomery v. Brain, 244 Ariz. 525,
527, ¶ 7 (App. 2018) (when a case involves the intersection of multiple statutes a court must give
meaning to all provisions).

IT IS ORDERED that Lake’s petition to inspect is granted as to requests (1), (2), and (4)
subject to the following conditions:

1) Plaintiff files with the clerk of the court a bond in accordance with the requirements of
A.R.S. § 16-677(B) and submits the name and contact information of her chosen ballot
inspector by 12:00 p.m. on Friday, December 15, 2022, and simultaneously files a notice
confirming payment of the bond with the court by email, copying all other parties.

2) The inspection does not in any way disturb the integrity of any ballots or their storage or
maintenance in the custody of Maricopa County, or disclose the identity of any voter as
connected to any given ballot; and

3) The inspection does not in any way interfere with any ongoing recount of the 2022 election

4) That the inspection shall begin at 8:00 a.m. Tuesday, December 20, 2022.

5) That this order authorizing an inspection is automatically vacated if the court dismisses
Plaintiff’s verified petition statement in its entirety following full briefing on the motion to

IT IS FURTHER ORDERED that the Maricopa County Defendants provide to the clerk
of the court the name and contact information of their preferred ballot inspector by 12:00 p.m. on
Friday, December 15, 2022.

IT IS FURTHER ORDERED that the Maricopa County Defendants provide to the court
the name of a proposed inspector for the court to name as its representative pursuant to A.R.S. §
16-677(B) by 12:00 p.m. on Friday, December 15, 2022.

Docket Code 019 Form V000A Page 4

You might also like